Boracay Foundation v. Province Of Aklan
Boracay Foundation, Inc. v. The Province of Aklan, et al., G.R. No. 196870, June 26, 2012
- Procedural (Remedial Law)
- Political Law
- environmental law
- continuing mandamus
- Environmental Compliance Certificate
- Environmental Impact Assessment
- reclamation project
- Local Government Code
- prior consultation
- exhaustion of administrative remedies
- moot and academic
- Boracay
- Caticlan
- Philippine Reclamation Authority
I. Facts of the Case
Boracay Foundation, Inc., a non-stock corporation of Boracay stakeholders, filed an original petition for continuing mandamus and an Environmental Protection Order against the Province of Aklan, the Philippine Reclamation Authority (PRA), and DENR-EMB Region VI. It challenged the Province's Caticlan reclamation (Marina) project, originally 40 hectares and later limited to 2.64 hectares, for lack of a proper environmental impact assessment, lack of prior LGU consultation and approval, and potential harm to Boracay's ecology.
1973
Boracay Island in Malay, Aklan was declared a tourist zone and marine reserve under Presidential Proclamation No. 1801. The Province of Aklan built and operates the Caticlan and Cagban jetty ports and passenger terminals as the gateway to Boracay.
2005
The Boracay 2010 Summit, in which petitioner took part, noted the need to expand the Caticlan port facilities because of congestion and rising tourist arrivals.
April 25, 2008
The Sangguniang Barangay of Caticlan issued Resolution No. 13, s. 2008, opposing the Province's foreshore lease application and noting it had not been consulted.
November 20, 2008
The Sangguniang Panlalawigan approved Resolution No. 2008-369, authorizing Governor Marquez to negotiate bond-financed projects, namely renovation of the Caticlan/Cagban terminals and reclamation of part of the Caticlan foreshore for commercial purposes.
March 12, 2009
Governor Marquez wrote PRA expressing interest in reclaiming about 2.64 hectares of Caticlan foreshore. A Financial Advisor/Consultant was engaged in April 2009, and the feasibility study in July 2009 put the cost at ₱260,000,000, to be financed by bonds.
May 7, 2009
The Sangguniang Panlalawigan issued Resolution No. 2009-110 authorizing the filing of a reclamation application with PRA for 2.64 hectares.
July 22, 2009
The Sangguniang Bayan of Malay issued Resolution No. 044 strongly opposing the Province's foreshore lease application.
September 19, 2009
Governor Marquez submitted an EPRMP to DENR-EMB RVI as an initial step to secure an ECC, after a Preliminary Geohazard Assessment in August 2009.
September 10, 2009 and October 1, 2009
Provincial Ordinance No. 2009-013 authorized issuance of Caticlan Super Marina Bonds of up to ₱260,000,000, and Ordinance No. 2009-015 amended it to authorize the bond flotation for the Marina Project.
October 22, 2009
After deliberating in October 2009 on expanding the reclamation area from 2.64 to 40 hectares, Governor Marquez sent PRA a revised Reclamation Project Description changing the size and location of the area to be reclaimed.
November 19, 2009
The Sangguniang Panlalawigan enacted Resolution No. 2009-299 authorizing a MOA with PRA for the 40-hectare Marina Development Project. It approved the bond terms on December 1, 2009, and the Province made an initial presentation to the Sangguniang Bayan of Malay on December 9, 2009.
April 20, 2010
PRA approved the reclamation project in Board Resolution No. 4094.
April 27, 2010
DENR-EMB RVI issued ECC-R6-1003-096-7100 for Phase 1 of the project, covering 2.64 hectares beside the existing Caticlan jetty port, based on the EPRMP.
May 17, 2010
The Province and PRA entered into a MOA for reclamation and development of about 40 hectares of foreshore and offshore areas of Malay.
June 17 to October 29, 2010
The Province held a series of information-education campaigns. Petitioner claims these were belated project presentations made after the bonds were issued, the MOA signed, and the project expanded to 40 hectares.
June 23, 2010 and August 3, 2010
The Municipality of Malay adopted Resolution No. 046 denying the Province's request for favorable endorsement, and Resolution No. 016 asking PRA not to grant a reclamation permit and notice to proceed.
July 26-27, 2010
The Sangguniang Panlalawigan set aside Malay's Resolution No. 046 through Resolution No. 2010-022, and the PRA Board confirmed the MOA through Resolution No. 4130.
October 12, 2010
Petitioner wrote PRA opposing the project, relying on the opinion of Dr. Porfirio Aliño of UPMSI that a full EIA was required, and citing the Province's failure to consult stakeholders under the Local Government Code.
October 19, 2010
PRA authorized the Province to proceed with Phase 1 of Site 1 (2.64 hectares) with its Evaluation Report. The project was described as about 40 hectares at two sites: Caticlan (36.82 hectares) and Manoc-manoc, Boracay (3.18 hectares).
December 1, 2010
The Province issued a notice to the contractor to commence construction. The Sangguniang Panlalawigan had meanwhile brushed aside petitioner's apprehensions as mere perceptions in Resolution No. 2010-034.
April 2011
At an April 4, 2011 hearing, Dr. Villanoy of UPMSI said the 2.64-hectare project would have an insignificant effect on strait hydrodynamics. The Sangguniang Panlalawigan enacted Resolution No. 2011-065, and RDC-VI approved the 2.64-hectare project on April 16, 2011. On April 25, 2011, PCCI-Boracay told the Governor it was not opposing the 2.64-hectare project on environmental grounds.
June 1, 2011
Petitioner filed with the Supreme Court a Petition for Environmental Protection Order/Issuance of the Writ of Continuing Mandamus. It argued the project was co-located in an environmentally critical area requiring a full or programmatic EIA, that the Province failed to obtain LGU endorsement and conduct Local Government Code consultations, and that DENR-EMB RVI did a cursory review using outdated data.
June 7, 2011
The Court issued a TEPO and required respondents to comment. After receiving it on June 9, 2011, the Province ordered the contractor to cease and desist from construction.
June 21-22, 2011
The Province argued that the petition was premature for failure to exhaust administrative remedies under DAO 2003-30, that the 2.64-hectare project was a stand-alone minor reclamation (Group II, Non-ECP in an ECA), and that LGU endorsement was not required for Category B2 projects. PRA stated that its approval and its NTP, issued only for Phase 1 of Site 1, followed its rules under EO 543.
July 1, 2011
DENR-EMB RVI filed its Comment, stating it issued the ECC for 2.64 hectares as an expansion of the old jetty port, which had a 1999 ECC. It argued that petitioner bypassed the DENR Secretary by not appealing and that no LGU clearances were required under DENR Memorandum Circular No. 2007-08.
September 8, 2011
The Province moved to dismiss the petition as moot, saying it would no longer pursue the succeeding phases (37.4 hectares) because it could not comply with the MOA, which would now cover only 2.64 hectares. The Court heard oral arguments on September 13, 2011 and required memoranda.
April 2, 2012
The Province filed another Manifestation saying the Barangay Council of Caticlan (February 13, 2012) and the Sangguniang Bayan of Malay (Resolution No. 020, s. 2012) had favorably endorsed the 2.6-hectare project, and prayed that the TEPO be lifted and the petition dismissed as moot.
June 26, 2012
The Supreme Court En Banc partially granted the petition. It held the petition properly filed and not moot, and that petitioner need not exhaust administrative remedies. It remanded the project's classification and EIA sufficiency to DENR-EMB RVI, held that Sections 26 and 27 of the LGC were violated, and converted the TEPO into a writ of continuing mandamus.
II. Issues
Whether the petition for continuing mandamus was properly filed directly with the Supreme Court under Rule 8, Section 1 of A.M. No. 09-6-8-SC.
Whether the petition has been rendered moot and academic by the limiting of the project to 2.64 hectares and the subsequent LGU endorsements.
Whether the petition is barred for petitioner's failure to exhaust administrative remedies under DENR DAO 2003-30.
Whether respondent Province complied with the requirements for the ECC, including the classification of the project as new or an expansion and as single or co-located, and the need for a full EIA.
Whether respondent Province complied with the prior consultation and prior sanggunian approval requirements of Sections 26 and 27 of the Local Government Code.
III. Ruling
Whether the petition for continuing mandamus was properly filed directly with the Supreme Court under Rule 8, Section 1 of A.M. No. 09-6-8-SC.
The petition was properly filed directly with the Supreme Court, which is one of the courts allowed to hear a petition for continuing mandamus in environmental cases.
How the Court reasoned
- Rule 8, Section 1 allows a person to file a verified petition for continuing mandamus when an agency unlawfully neglects a legal duty under environmental laws, and it permits filing in the Supreme Court, the Court of Appeals, or the Regional Trial Court.
- Petitioner alleged that respondents ignored or circumvented environmental laws and procedures on the ECC and public consultation.
- Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law.
- Because the Supreme Court is one of the three permitted fora, direct filing was proper.
“Hence, we find that the petition was appropriately filed with this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:”
Rule applied
Rule 8, Section 1, A.M. No. 09-6-8-SC (Rules of Procedure for Environmental Cases)
Whether the petition has been rendered moot and academic by the limiting of the project to 2.64 hectares and the subsequent LGU endorsements.
The case is not moot even if the project is limited to 2.64 hectares, because the Court must still check compliance with environmental laws and the LGU endorsements carry conditions that leave petitioner's concerns unresolved.
How the Court reasoned
- A case is moot when no actual controversy remains, but the Court still has to check compliance with environmental laws for the actual reclamation project, even at 2.64 hectares.
- Barangay Caticlan endorsed only the reclamation, not the vertical structures or the entire project, while petitioner's objections cover the whole project and its environmental effects.
- The Sangguniang Bayan of Malay conditioned its endorsement on, among other things, a comprehensive environmental impact study, which is the heart of the petition, and it may revoke the endorsement.
- The endorsements therefore did not address all the issues raised, and the petition remained alive.
“Assuming, however, that the area involved in the subject reclamation project has been limited to 2.64 hectares, this case has not become moot and academic, as alleged by respondents, because the Court still has to check whether respondents had complied with all applicable environmental laws, rules, and regulations pertaining to the actual reclamation project.”
Rule applied
Doctrine on mootness; Rules of Procedure for Environmental Cases (continuing mandamus); Sections 26 and 27, Local Government Code
Whether the petition is barred for petitioner's failure to exhaust administrative remedies under DENR DAO 2003-30.
Petitioner was not required to exhaust the DENR administrative appeal, because it was never a party to the ECC proceedings.
How the Court reasoned
- Exhaustion of administrative remedies is not a hard and fast rule and admits of exceptions.
- The appeal under Sec. 6 of DENR DAO 2003-30 applies only to parties to the ECC proceedings.
- Petitioner was never made a party to the proceedings before DENR-EMB RVI and was not furnished a copy of the decision, so it was not bound to appeal to the DENR Secretary.
- The writ of continuing mandamus under the Rules of Procedure for Environmental Cases is an available remedy for petitioner.
“It has been established by the facts that petitioner was never made a party to the proceedings before respondent DENR-EMB RVI.”
Rule applied
Doctrine of exhaustion of administrative remedies and its exceptions; Section 6, Article II of DENR DAO 2003-30; Rules of Procedure for Environmental Cases
Whether respondent Province complied with the requirements for the ECC, including the classification of the project as new or an expansion and as single or co-located, and the need for a full EIA.
The Court could not settle on the record whether the project is new or an expansion, single or co-located, or whether a full EIA is needed, so it remanded these questions to DENR-EMB RVI for proper study and report within a non-extendible three months.
How the Court reasoned
- Local government units are covered by PD 1586 and the EIS system, so the Province must secure a proper ECC.
- The Province re-submitted the 1999 studies for the original jetty port in its ECC application, rather than conducting updated and more comprehensive studies.
- The EPRMP showed Phase 1 included commercial buildings, a health and wellness center, and other facilities. At oral arguments it was established that these could cause pollution from garbage, sewage, and possible toxic fuel discharge.
- Whether the project is a new project or an expansion, and a single or co-located project, determines the level of EIA required, and this is for DENR-EMB RVI to study.
- The matter was therefore remanded to DENR-EMB RVI for proper study and a report within a non-extendible three months.
Rule applied
PD 1586 (Environmental Impact Statement System); DENR DAO 2003-30, Section 5.3 and Revised Procedural Manual (Group IV co-located projects, Table I-2)
Whether respondent Province complied with the prior consultation and prior sanggunian approval requirements of Sections 26 and 27 of the Local Government Code.
The Province violated Sections 26 and 27 of the Local Government Code, since prior consultation and prior approval of the sanggunian were mandatory and were not obtained before implementation.
How the Court reasoned
- Sections 26 and 27 require national government agencies and LGUs to consult affected communities and obtain prior sanggunian approval before implementing projects that may cause pollution or similar ecological harm.
- The Province's project may cause pollution, so these sections apply.
- DENR Memorandum Circular No. 2007-08, which exempts some projects from LGU clearances, cannot prevail over the Local Government Code, a statute.
- The Province filed its ECC application before meeting the LGUs of Malay and Caticlan, held its information campaign months after the ECC was issued, and began implementation despite the opposition of Malay and the Liga ng mga Barangay.
- The later LGU endorsements of February 2012 did not cure the lack of prior consultation and approval, so the Province violated Section 27.
“This is because a Memorandum Circular cannot prevail over the Local Government Code, which is a statute and which enjoys greater weight under our hierarchy of laws.”
Rule applied
Sections 2(c), 26 and 27, Republic Act No. 7160 (Local Government Code)
Doctrines
A petition for continuing mandamus under Rule 8 of A.M. No. 09-6-8-SC may be filed directly with the Supreme Court, the Court of Appeals, or the Regional Trial Court.
Exhaustion of administrative remedies is not an inflexible rule. The DENR appeal under DAO 2003-30 binds only parties to the ECC proceedings, so a non-party like petitioner need not exhaust it.
A case is not moot where the Court still has to check compliance with environmental laws, and LGU endorsements that are conditional do not resolve the environmental issues.
Local government units are covered by the EIS system of PD 1586 and must secure an ECC for projects that may significantly affect the environment.
Sections 26 and 27 of the Local Government Code require prior consultation and prior sanggunian approval for projects that may cause pollution. A DENR Memorandum Circular cannot prevail over the Local Government Code, and later endorsements do not cure the lack of prior consultation and approval.
Final Disposition
WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED. The TEPO is converted into a writ of continuing mandamus. Respondents must cease and desist from implementing the project until further orders. The classification of the project and the sufficiency of the EIA are remanded to DENR-EMB RVI for proper study and a report within a non-extendible period of three months, and the Province must secure the prior consultations and sanggunian approval required by Sections 26 and 27 of the Local Government Code.
Notes
Decided En Banc, with Justice Leonardo-De Castro as ponente. The decision states the shared policy goals of environmental protection, LGU empowerment, tourism promotion, and private sector participation. The issue 4 holding rests on a remand rather than a definitive classification, so the answer is marked NOT_STATED.